STIPULATED FINAL JUDGMENT AND ORDER FOR PERMANENT INJUNCTION AS TO DEFENDANT JOSEPH TURPEL
JESUS G. BERNAL, District Judge.
Plaintiff, the United States of America, acting upon notification and authorization to the Attorney General by the Federal Trade Commission ("FTC" or the "Commission"), has commenced this action by filing the complaint herein. The United States and Defendant Joseph Turpel ("Defendant"), represented by the attorneys whose names appear hereafter, have agreed to settlement of this action without adjudication of any issue of fact or law herein.
THEREFORE, on the joint motion of the parties, it is hereby ORDERED, ADJUDGED AND DECREED as follows:
FINDINGS
1. This Court has jurisdiction over the subject matter and the parties pursuant to 28 U.S.C. §§ 1331, 1337(a), 1345 and 1355, and 15 U.S.C. §§ 45(m)(1)(A), 53(b), 56(a), and 57b.
2. Venue is proper as to Defendant in this District.
3. The activities of Defendant are in or affecting commerce, as defined in Section 4 of the FTC Act, 15 U.S.C. § 44.
4. The complaint states a claim upon which relief may be granted against Defendant under Sections 5(a), 5(m)(1)(A), 13(b) and 19 of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. §§ 45(a), 45(m)(1)(A), 53(b), and 57b.
5. Defendant has entered into this Stipulated Judgment and Order for Permanent Injunction ("Order") freely and without coercion. Defendant further acknowledges that he has read the provisions of this Order and is prepared to abide by them.
6. Defendant agrees to entry of this Order. Defendant does not admit or deny the allegations set forth in this Complaint, except for admitting the jurisdictional facts and as otherwise specifically stated in this Order.
7. Defendant waives: (a) all rights to seek judicial review or otherwise challenge or contest the validity of this Order; (b) any claim that he may have against the Commission, its employees, representatives, or agents; (c) all claims under the Equal Access to Justice Act, 28 U.S.C. § 2412, as amended by Pub. L. 104-121, 110 Stat. 847, 863-64 (1996); and (d) any rights to attorneys' fees that may arise under said provision of law. Plaintiff and Defendant shall each bear their own costs and attorney's fees incurred in this action.
8. Entry of this Order is in the public interest.
DEFINITIONS
For the purpose of this Order, the following definitions shall apply:
1. "Asset" and "Assets" mean any legal or equitable interest in, right to, or claim to, any real or personal property, including, but not limited to, "goods," "instruments," "equipment," "fixtures," "general intangibles," "inventory," "checks," or "notes," (as these terms are defined in the Uniform Commercial Code), lines of credit, chattels, leaseholds, contracts, mail or other deliveries, shares of stock, lists of consumer names, accounts, credits, premises, receivables, funds, and all cash, wherever located.
2. "Assisting Others" includes, but is not limited to:
A. performing customer service functions, including, but not limited to, receiving or responding to consumer complaints;
B. formulating or providing, or arranging for the formulation or provision of, caller identification management services;
C. formulating or providing, or arranging for the formulation or provision of, any advertising or marketing material, including, but not limited to, any telephone sales script, direct mail solicitation, or the design, text, or use of images of any Internet website, email, or other electronic communication;
D. formulating or providing, or arranging for the formulation or provision of, any marketing support material or service, including but not limited to, web or Internet Protocol addresses or domain name registration for any Internet websites, affiliate marketing services, or media placement services;
E. providing names of, or assisting in the identification of, actual or potential customers;
F. performing marketing, billing, or payment services of any kind; and/or
G. acting or serving as an owner, officer, director, manager, or principal of any entity.
3. "Caller identification management services" means a service relating to:
A. the procurement of telephone numbers for sellers or telemarketers;
B. the procurement of caller identification services for sellers or telemarketers; or
C. the receipt of or demand for payments arising from the use of caller identification services by sellers or telemarketers.
4. "Caller identification service" means a service that allows a telephone subscriber to have the telephone number, and, where available, name of the calling party transmitted contemporaneously with the telephone call, and displayed on a device in or connected to the subscriber's telephone.
5. "Charitable contribution" means any donation or gift of money or any other thing of value.
6. "Defendant" means Defendant Joseph Turpel, an individual, and any fictitious business entities or business names, created or used by him, including, without limitation, Sonkie, Sonkie One, Global Telephone Broadcasting LLC, and Telco Compliance Management.
7. "Person" means any individual, group, unincorporated association, limited or general partnership, corporation, or other business entity.
8. "Representatives" means Defendant Joseph Turpel and his successors, assigns, officers, agents, servants, employees, attorneys and those persons in active concert or participation with any of them who receive actual notice of this Order by personal service or otherwise.
9. "Seller" means any person who, in connection with a telemarketing transaction, provides, offers to provide, or arranges for others to provide goods or services to the customer in exchange for consideration whether or not such person is under the jurisdiction of the Commission.
10. "Telemarketer" means any person who, in connection with telemarketing, initiates or receives telephone calls to or from a customer or donor.
11. "Telemarketing" means a plan, program, or campaign, whether or not covered by the Telemarketing Sales Rule ("TSR"), 16 C.F.R. Part 310, that is conducted to induce the purchase of goods or services, or a charitable contribution, by use of one or more telephones.
ORDER
I. PERMANENT BAN ON ROBOCALLS
IT IS THEREFORE ORDERED that Defendant, whether acting directly or through any person, trust, corporation, partnership, limited liability company, subsidiary, division, or other device, is permanently restrained and enjoined from initiating, causing others to initiate, or assisting other persons initiating, any telephone call that delivers a prerecorded message, also known as a "robocall."
II. PERMANENT BAN ON TELEMARKETING
IT IS FURTHER ORDERED that Defendant, whether acting directly or through any person, trust, corporation, partnership, limited liability company, subsidiary, division, or other device, is hereby permanently restrained and enjoined from telemarketing, and from assisting others engaged in telemarketing.
III. CIVIL PENALTY
IT IS FURTHER ORDERED that:
A. Judgment in the amount of Three Hundred Ninety-Five Thousand Dollars ($395,000.00) is hereby entered against Defendant as a civil penalty, pursuant to Section 5(m)(1)(A) of the Federal Trade Commission Act, 15 U.S.C. § 45(m)(1)(A), provided, however, that payment of the foregoing civil penalty is suspended subject to the conditions set forth in subsection B of this Section.
B. Plaintiff's and the Commission's agreement to this Order is expressly premised upon the truthfulness, accuracy and completeness of Defendant's sworn financial statements and supporting documents submitted to the Commission, namely an initial financial disclosure form dated January 24, 2013, and a revised financial disclosure form dated January 28, 2013, both signed under penalty of perjury; and the "Declaration of Joseph Turpel Pursuant to 28 U.S.C. § 1746 Re Financial Disclosures," signed under penalties of perjury on April 12, 2013. The exhibits to those disclosures were:
1. Schools First Federal Credit Union loan summaries for loans with concluding digits 94, 98, and 99, all printed to PDF format January 25, 2013;
2. Great Lakes account information and six months' payment history for consolidation loan with account number concluding 0007, printed to PDF format January 25, 2013;
3. Chevron credit card statement for account number concluding 0111, with a statement closing date of January 20, 2013 (page 1 of 6 only);
4. Discover credit card statement for account number concluding 4603, with a statement closing date of January 2, 2013;
5. Schools First Federal Credit Union Visa credit card statement for account number concluding 1182, with a statement closing date of January 2, 2013, printed to PDF format January 25, 2013;
6. Ocwen Loan Servicing loan information and verification of mortgage account for account concluding 6089, printed to PDF format January 25, 2013;
7. Schools First Federal Credit Union loan summaries for loan with concluding digit 88, printed to PDF format January 25, 2013;
8. Ocwen Loan Servicing account statement for account concluding 6089, dated January 14, 2013;
9. U.S. Individual Income Tax Returns, Forms 1040, for 2009, 2010, and 2011, for Defendant and spouse, with Defendant's SSN concluding 6859;
10. Orange County Fictitious Business Name Statement identifying "Telco Compliance Management" as a fictitious business name registered to Joseph Francis Turpel, filed May 23, 2012;
11. Zillow website "Zestimate" of value of Defendant and spouse's residence (page 3 only, printed to PDF format January 28, 2013);
12. Email from Defendant's tax preparer Jack Gendreau to Defendant, dated February 7, 2013; and
13. Corrected Schedule B for Defendant and spouse's 2011 federal income tax return.
These sworn financial statements and their exhibits include material information upon which Plaintiff and the Commission relied in negotiating and agreeing to this Order. If, upon motion by Plaintiff, this Court finds that Defendant's financial statements and his exhibits failed to disclose any material asset or materially misstated the value of any asset, or made any other material misstatement or omission, the Court shall lift the suspension of the judgment and require payment of civil penalties in the full amount of the judgment ($395,000.00): provided, however, that in all other respects this Order shall remain in full force and effect, unless otherwise ordered by the Court. Proceedings instituted under this Paragraph are in addition to, and not in lieu of, any other civil or criminal remedies that may be provided by law, including any other proceedings the Plaintiff may initiate to enforce this Order.
C. Defendant relinquishes dominion and all legal and equitable right, title, and interest in all assets transferred pursuant to this Order and may not seek the return of any such assets.
D. Defendant agrees that the facts as alleged in the complaint filed in this action shall be taken as true, without further proof, in any subsequent civil litigation filed by or on behalf of the Commission to enforce its rights to any payment or money judgment pursuant to this Order.
E. Defendant agrees that the judgment represents a civil penalty owed to the United States Government, is not compensation for actual pecuniary loss, and, therefore is not subject to discharge under the Bankruptcy Code pursuant to 11 U.S.C. § 523(a)(7).
F. Defendant acknowledges that his Taxpayer Identification Numbers and Social Security Numbers may be used for collecting and reporting on any delinquent amount arising out of this Order, in accordance with 31 U.S.C. § 7701.
IV. COOPERATION WITH PLAINTIFF AND COMMISSION COUNSEL
IT IS FURTHER ORDERED that Defendant shall, in connection with this action or any subsequent investigations related to, or associated with, the transactions or the occurrences that are the subject of the Complaint, cooperate in good faith with Plaintiff or the Commission and appear, or cause his officers, employees, representatives, or agents to appear, at such places and times as Plaintiff or the Commission shall reasonably request, after written notice, for interviews, conferences, pretrial discovery, review of documents, and for such other matters as may be reasonably requested by Plaintiff or the Commission. If requested in writing by Plaintiff or the Commission, Defendant shall appear, or cause his officers, employees, representatives, or agents to appear, and provide truthful testimony in any trial, deposition, or other proceeding related to or associated with the transactions or the occurrences that are the subject of the Complaint, without the service of a subpoena. Defendant shall be eligible for reimbursement of reasonable travel expenses to the extent prescribed by law in 28 U.S.C. § 1821.
V. ORDER ACKNOWLEDGMENTS
IT IS FURTHER ORDERED that Defendant obtain acknowledgments of receipt of this Order:
A. Defendant, within 7 days of entry of this Order, must submit to the
Commission an acknowledgment of receipt of this Order sworn under penalty of perjury.
B. For five years after entry of this Order, Defendant for any business that he is the majority owner or directly or indirectly controls, must deliver a copy of this Order to: (1) all principals, officers, directors, and managers; (2) all employees, agents, and representatives who participate in conduct related to the subject matter of the Order; and (3) any business entity resulting from any change in structure as set forth in the Section titled Compliance Reporting. Delivery must occur within 7 days of entry of this Order for current personnel. To all others, delivery must occur before they assume their responsibilities.
C. From each individual or entity to which Defendant delivered a copy of this Order, Defendant must obtain, within 30 days, a signed and dated acknowledgment of receipt of this Order.
VI. COMPLIANCE REPORTING
IT IS FURTHER ORDERED that Defendant make timely submissions to the Commission:
A. One year after entry of this Order, Defendant must submit a compliance report, sworn under penalty of perjury, as follows.
1. Defendant must: (a) designate at least one telephone number and an email, physical, and postal address as points of contact, which representatives of the Commission and Plaintiff may use to communicate with Defendant; (b) identify all of Defendant's businesses by all of their names, telephone numbers, and physical, postal, email, and Internet addresses; (c) describe the activities of each business, including the products and services offered, the means of advertising, marketing, and sales; (d) describe in detail whether and how Defendant is in compliance with each Section of this Order; and (e) provide a copy of each Order Acknowledgment obtained pursuant to this Order, unless previously submitted to the Commission.
2. Additionally, Defendant must: (a) identify all of his telephone numbers and all email, Internet, physical, and postal addresses, including all residences; (b) identify all titles and roles in all business activities, including any business for which he performs services, whether as an employee or otherwise and any entity in which he has any ownership interest; and (c) describe in detail his involvement in each such business, including his title, role, responsibilities, participation, authority, control, and any ownership.
B. For 12 years following entry of this Order, Defendant must submit a compliance notice, sworn under penalty of perjury, within 14 days of any change in the following:
1. Defendant must report any change in: (a) any designated point of contact; or (b) the structure of any entity that Defendant has any ownership interest in or directly or indirectly controls, where such change may affect compliance obligations arising under this Order, including: creation, merger, sale, or dissolution of the entity or any subsidiary, parent, or affiliate that engages in any acts or practices subject to this Order.
2. Additionally, Defendant must report any change in: (a) his name, including aliases or fictitious name, or residence address; or (b) title or role in any business activity, including any business for which Defendant performs services, whether as an employee or otherwise, and any entity in which Defendant has any ownership interest, and identify its name, physical address, and Internet address, if any.
C. Defendant must submit to the Commission notice of the filing of any bankruptcy petition, insolvency proceeding, or any similar proceeding by or against him within 14 days of its filing.
D. Any submission to the Commission required by this Order to be sworn under penalty of perjury must be true and accurate and comply with 28 U.S.C. § 1746, such as by concluding: "I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on:_____" and supplying the date, signatory's full name, title (if applicable), and signature.
E. Unless otherwise directed by a Commission representative in writing, all submissions to the Commission pursuant to this Order must be emailed to DEbrief@ftc.gov or sent by overnight courier (not the U.S. Postal Service) to: Associate Director for Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580. The subject line must begin: U.S. v. Turpel (X120005).
VII. RECORDKEEPING
IT IS FURTHER ORDERED that Defendant must create certain records for 12 years after entry of the Order, and retain each such record for 5 years. Specifically, Defendant, for any business in which he is a majority owner or directly or indirectly controls, must create and maintain the following records:
A. Accounting records showing the revenues from all goods or services sold, all costs incurred in generating those revenues, and the resulting net profit or loss;
B. Personnel records showing, for each person providing services, whether as an employee or otherwise, that person's: name, addresses, and telephone numbers; job title or position; dates of service; and, if applicable, the reason for termination;
C. Complaints and refund requests, whether received directly or indirectly, such as through a third party, and any response;
D. All records necessary to demonstrate full compliance with each provision of this Order, including all communications with and submissions to the Commission; and
E. A copy of each advertisement or other marketing material.
VIII. COMPLIANCE MONITORING
IT IS FURTHER ORDERED that, for the purpose of monitoring Defendant's compliance with this Order:
A. Within 14 days of receipt of a written request from a representative of the Commission or Plaintiff, Defendant must: submit additional compliance reports or other requested information, which must be sworn under penalty of perjury; appear for depositions; and produce documents for inspection and copying. The Commission and Plaintiff are also authorized to obtain discovery, without further leave of court, using any of the procedures prescribed by Federal Rules of Civil Procedure 29, 30 (including telephonic depositions), 31, 33, 34, 36, 45, and 69, provided that Defendant, after attempting to resolve a dispute without court action and for good cause shown, may file a motion with this Court seeking an order for one or more of the protections set forth in Rule 26(c), subject to the procedural requirements of Local Rules 37-1, 37-2, 37-3, and 37-4 (C.D. Cal. 2013), as amended.
B. For matters concerning this Order, the Commission and Plaintiff are authorized to communicate directly with Defendant. Defendant must permit representatives of the Commission and Plaintiff to interview any employee or other person affiliated with Defendant who has agreed to such an interview. The person interviewed may have counsel present.
C. The Commission and Plaintiff may use all other lawful means, including by having representatives pose as consumers, suppliers, or other individuals or entities, to Defendant or any individual or entity affiliated with him, without the necessity of identification or prior notice. Nothing in this Order limits the Commission's lawful use of compulsory process, pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-1.
IX. SEVERABILITY
IT IS FURTHER ORDERED that the provisions of this Order are separate and severable from one another. If any provision is stayed or determined to be invalid, the remaining provisions shall remain in full force and effect.
X. RETENTION OF JURISDICTION
IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this matter for purposes of construction, modification and enforcement of this Order.
JUDGMENT IS THEREFORE ENTERED in favor of Plaintiff and against Defendant Joseph Turpel, pursuant to all the terms and conditions recited above.
SO ORDERED.
